All India Democratic Women'S ...

vs State And Others on 30 September, 1997

Madras High Court

All India Democratic Women'S ... vs State And Others on 30 September, 1997
Equivalent citations: 1998 CriLJ 2629
Bench: S Sidickk
ORDER
1. The petition in Crl.M.P. No. 4780/97 in Crl. Appeal No. 677/97 is filed under S. 482 of Cr.P.C. by
the All India Democratic Women's Association, Tamil Nadu Unit, represented by its Assistant
Secretary V. Vasuki to permit the petitioner Association to intervene in the application filed by the
prosecution to cancel the bail in Crl.M.P. No. 4571 of 1997 in Crl. Appeal No. 677/97.
2. The petitioner in Crl.M.P. No. 4781/97 in Women Lawyer's Association at Madras represented by
its Secretary K. Santhakumari and the above petition is filed under S. 482 of Cr.P.C. to permit the
petitioner-Association to intervene in the application filed by the prosecution to cancel the bail in
Crl.M.P. No. 4571 of 1997 in Crl. Appeal No. 677/97.
3. Both these petitions are opposed by the learned counsel for the accused viz., the respondents 2 to
5 herein.
4. After hearing the learned counsel for the petitioners in both petitions filed under S. 482 of Cr.P.C.
and after hearing the learned counsel for the respondents 2 to 5/accused, the point that arises for
determination is as to whether the petitioners can be permitted to intervene in the application to
cancel the bail filed by the prosecution in Crl.M.P. No. 4571 of 1997 during the pendency of the
appeal in Crl. Appeal No. 677 of 1997.
5. Point :- The State represented by the Superintendent of Police, Crime Branch, CID-I, Chennai was
the Investigating Officer, and after investigation the charge sheet was filed, and the charges were
framed by the learned Principal Sessions Judge, Cuddalore in Sessions Case No. 99 of 1993 for the
offences under Ss. 343, 348, 324, 330, 376, 218 and 220 read with S. 109 of I.P.C.
6. All the accused persons, totally 11 accused persons, were involved in Sessions Case No. 99 of 1993
on the file of the Principal Sessions Judge, Cuddalore. Out of the total 11 accused, six accused were
charged for the offence of rape of one Padmini, while she was in custody in the police station, and
they are A1 to A3, A6, A8 and A10, and they were alleged to have committed the offence of rape on
the said Padmini, and out of six accused persons charged for the offence of rape under S. 376 of
I.P.C., four were convicted and they are A3, A6, A8 and A10, while A1 and A2 were acquitted for the
offence of rape on the said Padmini by the learned Principal Sessions Judge, Cuddalore in his
Judgment dated 4-9-1997. But A1 and A2 were convicted for the offence of wrongful confinement of
the said Padmini even though they were acquitted for the offence of rape on the said Padmini.
Aggrieved against the Judgment of conviction and sentence A1 and A2 filed a separate appeal in Crl.
Appeal No. 680/97, while so the accused A3, A6, A8 and A10 filed a separate appeal in Crl. Appeal
No. 677 of 1997. During the pendency of the Crl. Appeal No. 677/97 the accused viz., A3, A6, A8 and
A10 filed an application under S. 389(1) of Cr.P.C. to suspend the sentence of 10 years passed
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All India Democratic Women'S ... vs State And Others on 30 September, 1997

against them for the offence of rape and to suspend the sentence for the other offences and to
release them on bail in Crl.M.P. No. 4472 of 1997, and by an order dated 11-9-1997 the sentences
imposed on them were suspended by this Court and they were granted bail. Thereupon the State
represented by the Superintendent of Police, Crime Branch, CID-I, Chennai, who is the
Investigating Agency, has filed an application in Crl.M.P. No. 4571 of 1997 to cancel the bail granted
to A3, A6, A8 and A10 in Crl.M.P. No. 4472 of 1997 consequent to the suspension of sentence.
During the pendency of the petition for cancellation of bail in Crl.M.P. No. 4571 of 1997, the
petitioners Associations have filed these two petitions under S. 482 of Cr.P.C. to intervene in the
petition filed by the prosecution to cancel the bail in Crl.M.P. No. 4571 of 1997. The Petitioners
Associations are third parties to the Sessions Case No. 99 of 1993 and also to the consequential
Criminal Appeals and the Criminal Miscellaneous Petitions. In other words the Petitioners
Associations are neither informant nor the victims nor the complainant in the Sessions Case. These
are the admitted facts in these two petitions. Bearing these admitted facts in mind we have to
consider the claim of the Petitioners Associations as to whether they can be permitted to intervene
in the application filed by the prosecution to cancel the bail of A3, A6, A8 and A10 in Crl.M.P. No.
4571 of 1979.
6-1. The learned counsel Miss. R. Vaigai, appearing for the Petitioners Association in Crl.M.P. No.
4780/97 viz., All India Democratic Women's Association contended that this Association has been
assisting the victim woman by name Padmini from the very beginning, and in a case like this where
a helpless woman was subjected to brutal assault by the policemen and the trial Court having
convicted the accused for the offence of rape in police custody, they ought not to have been shown
any leniency to release them on bail and the Judgment of trial Court is a well considered one and
based on evidence, and the accused do not deserve to be let out on bail in the context of the case,
and in all fairness in the interest of justice this Court has to cancel the bail granted to them in
Crl.M.P. No. 4472 of 1997. In this respect the learned counsel Miss R. Vaigai brought to my notice
para 52 of the Judgment of the trial Court and stated that the trial Court has made a reference in
para 52 of its Judgment to the effect that the trial Court relies upon the evidence of the District
Secretary of the Petitioner Association and her husband's evidence. On a perusal of the entire
paragraph 52 of the Judgment of the trial Court in Sessions case No. 99 of 1993, I could not find any
reference to the Petitioner Association viz., All India Democratic Women's Association, Tamil Nadu
Unit. Nothing is stated in para 52 of the Judgment of the trial Court that Balakrishnan and
Johnsirani referred to in the said para are the office bearers of the said Association. Even admitting
that there is a reference about the office bearers of the said Association in the Judgment of the trial
Court, it does not mean that they have legal right to come forward to intervene in the petition for
cancellation of bail on the ground that there is a reference to their Association in the Judgment of
the lower Court.
7. In this respect the learned counsel Miss R. Vaigai relied upon the decision in Pratap v. State of
U.P., in support of her contention that a third party like the Petitioner-Association can intervene.
The Supreme Court has stated in para 15 of the said Judgment as follows :
"Whether the High Court could impose a sentence of death on the appellant when there was no
appeal by the State, merely on the basis of Revision Petition filed by a private party does not give
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All India Democratic Women'S ... vs State And Others on 30 September, 1997

rise to any serious difficulty. Under S. 439 of the Code of Criminal Procedure (Old Code) the High
Court has got ample powers and as a notice has also been issued to the appellant to show cause why
his sentence should not be enhanced, there is no illegality in the sentence of death imposed on the
appellant. The power under S. 439 of Criminal Procedure Code (Old Code) is one which the High
Court can exercise suo motu and all that a person filing a Revision Petition under that Section does
is to draw the Court's attention to an illegal, improper or incorrect finding, sentence or order of a
subordinate Court. The fact that in this case the brother of the deceased filed a Revision Petition and
the Government did not do so, does not affect the powers of the High Court under that Section."
8. It seems from the decision that the High Court itself exercised the revisional power suo motu
under S. 439 of Old Cr.P.C. That decision was rendered by the Supreme Court under S. 439 of the
Old Criminal Procedure Code of 1898, corresponding to S. 401 of the new Code of Criminal
Procedure of 1973. That was a case, where the brother of the deceased also filed a Revision Petition
to enhance the sentence. In those circumstances the Supreme Court said that the High Court could
exercise the Revisional power to enhance the sentence even though the brother of the deceased filed
a Revision to enhance the sentence, thereby drawing the attention of the Court to improper
sentence. Such was not the case before us. Besides nowhere in the said decision of the Supreme
Court it has been stated by the Supreme Court that a third party like the Petitioner Association can
intervene in a criminal proceeding like the bail petition or a petition to cancel the bail and put forth
their contentions in support of the victim or the complainant. Therefore the decision will not be of
any help of the Petitioner-Association in Crl.M.P. No. 4780 of 1997 to contend that they have got a
right to intervene and take up the cause of the victim woman in this case.
9. The second decision relied on by the learned counsel Miss. R. Vaigai in support of the
intervention of the Petitioner-Association is the decision reported in Ranjit Singh v. Nand Lal (1975
Crl LJ 1416 at pages 1417 and 1418 and at the end of para 5), wherein it was held as follows :"Sub-section (2) of Section 439 of Criminal Procedure Code does not state that the State
Government alone can make an application for cancellation of bail. The Court can suo motu issue
notice to cancel the bail if it comes to its notice that the Sessions Judge granted bail to the accused
on an erroneous or some extraneous grounds. There is no prohibition in Section 439(2) Criminal
Procedure Code that an application for cancellation of bail cannot be made by a private person. ......
There is no bar that an application under S. 439(2) of Criminal Procedure Code for cancellation of
bail made by a private complainant cannot be entertained".
10. That was a case where the case under S. 302 of I.P.C. was registered against one Nand Lal, who
was the A.S.I., on the report lodged by Ranjit Singh, who was the brother of Gulab Singh, and Nand
Lal killed Gulab Singh by firing shots with his pistol, and Nand Lal obtained bail in the Court of
Sessions, and thereafter an application for cancellation of bail was made by the complainant Ranjit
Singh, who is none other than the brother of the deceased Gulab Singh. Such was not the case before
us. The complainant in this case is Padmini and she has not filed any application to cancel the bail,
even though the Petitioner-Association claims that they were protecting the cause of the victim
Padmini. In the decision of Punjab and Haryana High Court reported in 1975 Crl. LJ 1416 to 1417 it
is not stated that a third party Association like the Petitioner Association can intervene in the
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All India Democratic Women'S ... vs State And Others on 30 September, 1997

petition filed by the prosecution for cancellation of bail or can file an application for cancellation of
bail. Therefore the second decision relied on by the learned counsel Miss R. Vaigai will not lend any
credence to her contention that the Petitioner-Association in Crl. M.P. No. 4780 of 1997 can
intervene in the application filed by the prosecution to cancel the bail application in this case viz.,
Crl. M.P. No. 4571/97.
11. The third decision relied on by the learned counsel Miss R. Vaigai is the one reported in Sant
Ram v. Kalicharan, 1977 Crl LJ 486 at page 488. That was a case where one Sant Ram was one of the
victims, who were attacked by one Kalicharan and other accused, who were the respondents in that
case. The respondents/accused were arrested in that case and obtained bail in the Sessions Court,
and one of the victims by name Sant Ram challenged the bail order even though the State has not
preferred any application to cancel the bail. In those circumstances the learned Judge of the Delhi
High Court came to the conclusion in para 6 of the said Judgment that the Revision filed by a
private party could not be said to be totally unmaintainable when on the facts and circumstances of
the case it was necessary to intervene with the order in the interests of justice. So the facts in the
decision of the Delhi High Court are not identical with the facts in these petitions. At the risk of
repetition I have to say that the Petitioner Association is not the victim or the complainant in this
case. The petitioner Association is a third party. In those circumstances the third party like the
Petitioner-Association cannot intervene in the application filed by the State to cancel the bail
already granted to some of the accused in this case and therefore the decision relied on by the
learned counsel for the Petitioner-Association in Crl.M.P. No. 4780 of 1997 and reported in 1977 Crl.
LJ 486 at page 488 and at para 6 will not come to their rescue to contend that the
Petitioner-Association has got every right to intervene in the application filed by the prosecution to
cancel the bail already granted to some of the accused in this case.
12. The other association viz., Women Lawyers' Association at Madras represented by its Secretary,
who is the petitioner in Crl.M.P. No. 4781 of 1997, would say in the affidavit filed in support of this
petition that they have been assisting the women in distress and their Association also was keenly
espousing the cause of the women, and their Association is interested in ensuring that the issue of
the women are represented properly before all forums, and the order of this Court dated 11-9-1997
in Crl.M.P. No. 4472 of 1997 suspending the sentence and grating bail to some of the accused, did
not state any reason for the grant of bail, and the Association is deeply concerned in this matter
since the accused are all policemen, and the offence has been committed in custody, and in such
cases the bail should not be granted leniently, and so they requested permission to intervene in this
matter. For the reasons stated earlier I am of the view that the Women Lawyers' Association at
Madras cannot be permitted to intervene in the application filed by the State to cancel the bail
granted to some of the accused for the simple reason that the Women Lawyers' Association at
Madras is neither informant nor the victim nor the complainant and it is only a third party to the
proceedings.
13. Per contra the learned counsel for the accused Mr. B. Shanmugavelayutham brought to my
notice four decisions of the Madras High Court, which have taken the consistent view that only the
informant or the victim or the complainant or their close relations like father or brother of the
victim can intervene in matters like the petition for bail or cancellation of bail or for quashing the
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All India Democratic Women'S ... vs State And Others on 30 September, 1997

proceedings and no other third party can claim a right to intervene. The decisions cited by the
learned counsel for the accused are as follows :
14. In the first decision of our Madras High Court reported in Dharmar and another v. State by the
Inspector of Police (1985 LW (C) 219) Justice Sengottuvelan, J. stated as follows :"There is no provision in the Criminal Procedure Code to implead a third party in a prosecution
case. Section 301, Cr.P.C. provides for instructing a pleader to prosecute by any person in any case
and if the pleader is so instructed, he will have to act under directions of the Public Prosecutor or the
Assistant Public Prosecutor as the case may be, and such pleader with the permission of the Court
may submit written arguments after the evidence is closed in that case. At the same time the third
party can be permitted to assist the Public Prosecutor in the matter of prosecuting the evidence and
in which case S. 301 gives the third party a right to assist the prosecution and also to submit written
arguments. The third party like the petitioner is only entitled to assist the prosecution and he cannot
be impleaded as a party to the proceedings."
15. In the second decision reported in Saravanabhavanandum v. S. Murugaiyan (1986 Law Weekly
(Crl) 165 : 1986 Crl 1540) the very same Judge Justice Sengottuvelan, J. laid down as follows at page
1542 (of Cri LJ) :"There is no provision in the Criminal Procedure Code, which enables a third party to get himself
impleaded in the proceedings before the Criminal Court. We have only Section 301 Cr.P.C., which
enables the private parties to assist the prosecution and also submit written arguments with the
leave of the Court. According to Section 301 of Cr. P.C., such assistance is to be given at the enquiry,
trial or appeal in a criminal case. When a party cannot be impleaded in criminal proceedings as held
by this Court, he cannot be permitted to come in under the guise of an intervenor. But at the same
time, bearing in mind the wholesome observation of the Supreme Court, the right of a party to
represent matters before the court cannot be whittled down into a straight-jacket formula of locus
standi, which is unknown to criminal jurisprudence. It is open to any party to make his
representations in the bail proceedings pending before this Court before the inquiry or trial starts".
16. Thus the decision of Justice Sengottuvelan, J. reported in 1986 Law Weekly (Crl) 165 : (1986 Cri
LJ 1540) makes it clear that the representation in the bail proceedings can be made before the trial
starts. But here is the case where the trial was completed and the Judgment was delivered and the
appeal has been preferred by some of the accused and during the pendency of the appeal the State
has prefered an application to cancel the bail. So following the ratio laid down by Justice
Sengottuvelan, J. in his later decision reported in 1986 Law Weekly (Crl) 165 : (1986 Cri LJ 1540) it
is not open to anybody after the trial was completed to make the representation in the bail petition.
It is also relevant to note that in the said decision it is only the brother of the deceased, who was
permitted to intervene to make his representation in the bail proceedings. The third party
Association has not intervened in the decision reported in 1986 Law Weekly (Crl) 165 : (1986 Cri LJ
1540). Therefore the second decision of Sengottuvelan, J. and reported in 1986 Law Weekly (Crl)
165 : (1986 Cri LJ 1540) will strengthen the contention of the learned counsel for the accused that
third party like the Petitioners Associations cannot have any audience in respect of the bail
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All India Democratic Women'S ... vs State And Others on 30 September, 1997

proceedings, even though they might have championed the cause of the victim woman and
supported her cause.
17. The third decision that was relied on by the learned counsel for the accused is the decision of
Justice Pratap Singh, J. reported in Sekar v. Narayanan, (1992 MLJ 76 and para 5) wherein it was
held as follows :"The respondents herein want quashing of the entire proceedings as against them. While that is
being considered, the informant viz., the petitioner herein also should be heard. He must be given
an opportunity so that he can make his submissions regarding the cognizance of the offence and
maintainability of the same."
18. Then one another decision which would lend support to the contention of the learned counsel for
the accused, is the one reported in Easwaramoorthy v. State by Inspector of Police (1992 Law
Weekly (Crl) 233 at 234), wherein Justice Janarthanam, J. laid down the law on this subject as
follows :"The code has given the recognition to such a sanguine principle, by indicating in various provisions,
such as Sections 2(u), 24, 25, 225, 301 and 302. A survey of these provisions does indicate
appointment of a Public Prosecutor either by the State or by the Center to be in charge of the
prosecution in respect of the cases filed before Courts and conduct prosecution therefor. ... It is also
clear from Sections 24 and 301 of the Code that a pleader privately engaged cannot plead, although
he can act under the directions of the Public Prosecutor. Section 2(1) read with Section 301 of the
Code leads to the inevitable conclusion that any person engaged in brief by a private person to
instruct the prosecutor can only so instruct and act under the directions of the Public Prosecutor
and the prosecution shall be conducted by the Public Prosecutor himself."
19. It is pertinent to note that in the case reported in 1992 Law Weekly (Crl) 233 one
Easwaramoorthy, who is the father of the complainant by name Usha, took out the application to
implead him as the 2nd respondent in the Criminal Original Petition filed by the accused to quash
the proceedings in a criminal case. Thus the father of the complainant himself was not given the
audience to represent her daughter in the criminal proceedings by Justice Janarthanam, J. Such
being the decision of our Madras High Court it is not open to third parties like the petitioners
Associations to intervene to put forth their submissions in the application filed by the prosecution to
cancel the bail already granted to some of the accused in this case. Therefore on a careful scrutiny of
the decisions referred to above it follows that there was a consistent view taken by three Judges of
Madras High Court that there is no right of audience in the criminal proceedings for third parties
except for the informant or for the victim or for the complainant or their close relations. While such
being the views expressed by the learned three Judges of our High Court I am unable to subscribe to
the views of the petitioners Associations that they have a right to intervene and make their
submissions with reference to the petition filed by the State to cancel the bail granted already to
some of the accused in this case.

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All India Democratic Women'S ... vs State And Others on 30 September, 1997

20. Section 301(2) of Cr.P.C. gives the third party a right to assist the prosecution only. A very
limited right seems to have been given to an Advocate instructed by a private person and that too to
assist the Public Prosecutor under section 301(2) of Cr.P.C. The only correct interpretation of
Section 301(2) of Cr.P.C. can be that the lawyer instructed by a private person has no right of
audience except to assist the Public Prosecutor and that Advocate can certainly assist the Public
Prosecutor during the course of criminal proceedings. However noble their object may be, the
petitioners Associations, who are third parties to this case, cannot be permitted to intervene and to
put forth their submissions independently of the Public Prosecutor, who represents the State in the
petition to cancel the bail. The prosecution of the criminal proceedings is primary responsibility of
the State, and if third parties are permitted to intervene, then there will be number of Associations
to represent one party or other in criminal proceedings and it will give rise to confusion and chaos.
21. Considering the above facts and circumstances of the case I am to hold that the third parties like
the Petitioners Associations cannot be allowed to intervene in the petition filed by the State to cancel
the bail already granted to some of the accused in this case, and so these two petitions filed by the
Petitioners Associations have to be dismissed, and consequently they are dismissed, and I answer
this point as against the petitioners Associations.
22. In the result both the petitions viz., Crl.M.P. No. 4780 and 4781 of 1997 are dismissed.
23. Petition dismissed.

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